This past week’s hacking and posting of a slew of Hollywood stars’ nude photos, including Jennifer Lawrence and Kate Upton, has dominated the Internet and led to debate about this very modern cyber crime. The violation of privacy is clear, but which laws were broken and the possible punishments are not as obvious.
In an attempt to clear up the legal consequences for the modern offense, TheWrap spoke with first amendment attorney Marc J. Randazza, who takes on many so-called “revenge porn” cases — where an individual shares private, often nude or pornographic photos or videos of someone else online.
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While the term may conjure up images of men posting photos or videos of an ex-girlfriend, the vast majority of the perpetrators of revenge porn are actually women, Randazza said. “Most are spread by vengeful ex-girlfriends or new girlfriends.”
In any event, including the current one, entering someone else’s private iCloud illegally is a violation of hacking laws, Randazza said. But also in play are copyright laws: whoever took the photos in question has ownership of them, meaning the hackers also violated proprietary protections.
Or in legalese: “There is at least 18 USC s 1030, which is the federal anti hacking statute,” Randazza explained. “There may also be other trespass statutes or state statutes. But at the least, the hacking itself was a violation of 1030.”
While the theft and publishing of the images are both violations, Randazza believes that labeling the mass-hack of celebrity nudes as a “sex crime” would be irresponsible.
“I do not think it would be a ‘sex crime,’” Randazza told TheWrap. “There are a few groups of shrill harpies out there who want it to be equated with rape, and some of the dumber state legislators out there have listened to them. But, I doubt that it would get anyone on the sex offender registry. Now, in the case of underage photos, then you’re talking another story. If you get convicted of a child porn violation, you’re going on a sex offender list.”
Randazza went on to call any statute that would carry a jail sentence for hacking and publishing the photos of adults “unconstitutional.”
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He also has a beef with the inconsistency of the governing laws and consequences throughout the nation. Utah, Colorado, Florida, and California — to name a few — in this instance could call for jail time; other states, he said, would simply allow for a civil case.
With those criminal laws in place in California, where many of the famous victims no doubt reside, it is possible that this won’t end in with just a civil suit. Criminal charges, too, would be piling on, Randazza believes.
“Revenge porn sucks and there should be civil penalties behind it,” he said. But there is “no way” that mere revenge porn perpetrators should be in jail with criminals of violent sex crimes, such as rapists, he said.
However, there is a precedent for a severe prison sentence in a case such as this one: In 2012, Christopher Chaney was sentenced to ten years in jail for hacking the email accounts of about 50 celebrities and posting nude photos of Scarlett Johansson online.
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One of the challenges prosecutors will face in this case is determining exactly where the online crime took place and thus where to begin the filing process. To start, the location could be where the hackers reside, which might potentially come through the tracing of an IP Address.
But by its nature of existing everywhere simultaneously, finding the proper location to try an internet crime is tricky. But Randazza doesn’t think that individuals are the only ones who should be on the hook for the crimes of the internet. “I also think there should be some legislation to make the service providers responsible,” he said.
Still, he wouldn’t go after 4chan, the platform where the photos were first posted, or Google, the search engine that many used to find them. “4chan’s not really a site devoted to this kind of thing,” he explained. “It’s not a site devoted to hurting anyone, and it doesn’t make a profit from this.”
And forget suing Google, thanks to Section 230, a statute that protects websites for offensive posts from other parties. Although, he believes that Google’s “arrogance” is part of why this kind of thing happens. “They have no ethics,” he said. “Their only inquiry is, ‘What can we get away with?’”
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Still, civil cases against individuals can yield big consequences: Randazza once scored a $380,000 judgment in Ohio for one of his revenge porn victims. The biggest consequence in 2014, he added, can be as simple as having your name tarnished when somebody Googles you.
In his line of work, Randazza said that some of the victims want the perpetrators punished with jail time, some are okay with monetary rewards. But when it comes down to it, Randazza said, the vast majority just want the photos or video to go away. And they definitely have that right, he said.
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In a “significant” number of cases, Randazza said that he has managed to make the photos or videos go away — but it helps that a lot of his clients are underage.
That segues us to McKayla Maroney, the Olympic gymnast who was allegedly underage in her recently leaked photos: “She’s got a hell of a civil suit,” Randazza said — a lot more so than the victims who were of legal age in their leaked photos, at least.
Still, case or no case, the attorney has the following advice for anyone who chooses to turn their cell phone camera on themselves while sporting a birthday suit: “Anything that you take, you should be prepared for it to come out,” Randazza concluded.